Read Judge Lamer's thoughts on the importance of recognizing oral histories in cases with "aboriginal" claimants and watch Trick or Treaty? - why is it important that we study the oral histories of treaties alongside the written treaties? Here is Judge Lamer's thoughts:

Judge Lamer's Response to the Appeal of the 1984 Delgamuukw v. British Columbia trial

In determining whether an aboriginal claimant has produced evidence sufficient to demonstrate that her activity is an aspect of a practice, custom or tradition integral to a distinctive aboriginal culture, a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.

This appeal requires us to apply not only the first principle in Van der Peet but the second principle as well, and adapt the laws of evidence so that the aboriginal perspective on their

practices, customs and traditions and on their relationship with the land, are given due weight by

the courts. In practical terms, this requires the courts to come to terms with the oral histories

of aboriginal societies, which, for many aboriginal nations, are the only record of their past.

In the Aboriginal tradition the purpose of repeating oral accounts from the past is broader than

the role of written history in western societies. It may be to educate the listener, to communicate

aspects of culture, to socialize people into a cultural tradition, or to validate the claims of a

particular family to authority and prestige. . . .

Oral accounts of the past include a good deal of subjective experience. They are not simply a

detached recounting of factual events but, rather, are "facts enmeshed in the stories of a

lifetime". They are also likely to be rooted in particular locations, making reference to

particular families and communities. This contributes to a sense that there are many histories,

each characterized in part by how a people see themselves, how they define their identity in

relation to their environment, and how they express their uniqueness as a people.

Many features of oral histories would count against both their admissibility and their weight as

evidence of prior events in a court that took a traditional approach to the rules of evidence. The

most fundamental of these is their broad social role not only "as a repository of historical

knowledge for a culture" but also as an expression of "the values and mores of [that] culture":

(McLeod, 1992).The difficulty with these features of oral histories is that they are tangential to the ultimate purpose of the fact-finding process at trial the determination of the historical truth. Another feature of oral histories which creates difficulty is that they largely consist of out-of-court statements, passed on through an unbroken chain across the genera- tions of a particular aboriginal nation to the present-day. These out-of-court statements are admitted for their truth and therefore conflict with the general rule against the admissibility of hearsay.

Notwithstanding the challenges created by the use of oral histories as proof of historical facts,

the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with,

which largely consists of historical documents. This is a long- standing practice in the

interpretation of treaties between the Crown and aboriginal peoples... To quote Dickson C.J., given that most aboriginal societies "did not keep written records", the failure to do so would "impose an impossible burden of proof" on aborig- inal peoples, and "render nugatory" any rights that they have. This process must be undertaken on a case-by-case basis.

The trial judge, however, went on to give these oral histories no independent weight at all. He

held, at p. 180, that they were only admissible as "direct evidence of facts in issue... in a few

cases where they could constitute confirmatory proof of early presence in the territory". Although he had earlier recognized, when mak- ing his ruling on admissibility, that it was impossible to make an easy distinction between the mythological and "real" aspects of these oral

histories, he discounted the adaawk and kungax because they were not "literally true", confounded "what is fact and what is belief", "included some material which might be classified as mythology", and projected a "romantic view" of the history of the appellants. He also cast doubt on the authenticity of these special oral histories (at p. 181) because, inter alia, "the verifying group is so small that they cannot safely be regarded as expressing the reputation of even the Indian community, let alone the larger community whose opportunity to dispute territorial claims would be essential to weight". Finally, he questioned (at p. 181) the utility of the adaawk and kungax to demonstrate use and occupation because they were "seriously lacking in detail about the specific lands to which they are said to relate".

The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system, in contradiction of the express instruction to the contrary in Van der Peet that trial courts interpret the evidence of aboriginal peoples in light of the difficulties inherent in adjudicating aboriginal claims.